In July of 2016, Lisa and Robert Gerbino (hereinafter “Gerbinos”) made an application to the Town of East Hampton Zoning Board of Appeals (“ZBA”) for setback relief to allow an existing patio that was built without a permit to remain 10.2 feet from the southern property line where 20 feet is required at their property located at 3 Old Station Place, Amagansett. The Gerbinos purchased their property with the subject patio which is located next to their legally constructed pool. They discovered the patio was built without a permit and in violation of setbacks when they sought a certificate of occupancy for a legally constructed pool house.

At the ZBA hearing held on February 28, 2017, the applicant submitted that (i) the patio was built by the prior owner and the Gerbinos believed it was constructed legally along the southern side of the pool, (ii) the patio is entirely screened by large evergreen trees along the southern side of the property and (iii) there would be no adverse impact on the neighbors or community. The applicant further submitted a letter from the neighboring property to the east, 52 Atlantic Avenue, in support of the application.

A representative for the vacant property owner at 5 Old Station Place, which shares the lot line from which the variance is requested, testified in opposition to the application. Citing Town Code §255-11-89, which requires accessory structure setbacks for pool patios to be doubled, the opposition asserted that the purpose of the law is to protect property owners’ use and enjoyment of their back yards since pools are active recreational structures. The doubled setback requirement creates adequate buffer and transitional yards for pools. Moreover, the representative in opposition stressed that the construction on the lot was maxed out by constructing an approximate 6,000 square foot house (she included the finished basement in her calculation) on a lot shy of ½ acre with the pool placed at a maximum distance from the house in an effort to extend the back yard, negatively impacting her client’s design flexibility with respect to his vacant parcel. Finally, she submitted that the neighbor’s letter in support was submitted from the prior owner of the subject property that constructed the pool and pool patio at issue and was not impacted by the requested variance.

The Zoning Board of Appeals denied the variance request by determination dated May of 2017, stating that, “granting the requested variance will create a detriment to nearby properties. The reason setbacks are doubled for pool patios are to mitigate the noise impact to neighbors caused by the use of the pool and patio. Applicant is requesting a 51% variance along the entire length of the patio. Moreover, the applicants have not presented the Board with any unique circumstances explaining why they cannot comply with the Town Code. There is area along the north side of the pool that can accommodate the same amount of pool patio without requiring a variance from the Board. The Board notes that the neighbor most affected by the patio spoke out against granting the variance.”

The Gerbinos appealed, and the Supreme Court, Suffolk County in Gerbino, et al., v. Whelan, Supreme Court, Suffolk County, Index No. 2987-2017, overturned the ZBA determination and granted the Article 78 Petition. The Court held that the decision of the ZBA was not supported by a rational basis and as such, was arbitrary and capricious. The Court stated, “except for an unsupported objection by one adjoining property owner, there was no evidence proffered that the requested variance would have an undesirable effect on the character of the neighborhood … [f]urthermore, a patio 10.2 feet from the southern border of the property as opposed to the 20 feet required, clearly does not impact the adjoining property owners or neighbors.” The Town appealed.

By decision dated August 19, 2020, the Appellate Division, Second Department overturned the Supreme Court decision and upheld the ZBA’s denial of setback relief. Noting the broad discretion afforded to local zoning boards in considering applications for variances, the Court found that, the Supreme Court should have denied the petition and dismissed the proceeding as the Zoning Board’s determination had a “rational basis in the record.” The Court stated that “the record supports the Zoning Board’s determination that the variance is substantial, that granting the variance would have a detrimental impact upon neighboring properties, that feasible alternative locations exist to situate a pool patio on the property, and that any hardship was self-created (see Matter of Kramer v Zoning Bd. of Appeals of Town of Southampton, 131 AD3d at 1172; Matter of Sacher v Village of Old Brookville, 124 AD3d 902, 904). Accordingly, the Supreme Court should have denied the petition and dismissed the proceeding on the merits.”

As a result, the Gerbinos are faced with having to either (i) remove the existing noncompliant patio, (ii) relocate the pool patio to a conforming location, or (iii) go back to the ZBA with a proposed patio in a new location should that new location require zoning relief.



Failure to name a necessary party when challenging a land use determination may result in dismissal, and leave a challenger without further recourse. CPLR 1003 provides that the nonjoinder of a party who should be joined under CPLR 1001 (i.e. a person ought to be a party if he or she might be inequitably be affected by a judgment in the proceeding), is a ground for dismissal without prejudice. Although such dismissal is technically “without prejudice,” it may actually be prejudicial in practice; if the statute of limitations has lapsed when the petition is amended to join the missing party, then the petitioner’s challenge may be barred by the statute of limitations. The amended pleading might find refuge in the relation back doctrine, but a petitioner should not hope to rely on fixing this problem after the fact.

This month, in MMSI Props., LLC v City of Glens Falls, 2020 N.Y. Slip Op. 51193(U) [Sup Ct Warren County, Oct. 13, 2020], the Supreme Court, Warren County, dismissed a neighbor’s challenge to a planning board decision approving construction of a 29-unit apartment complex for chronically homeless individuals and families, those suffering from mental illness, and victims of domestic violence (“Project”), because the neighbor failed to name the owner of the subject property in its petition. The Court also rejected the petitioner’s attempt to rely upon the relation back doctrine to salvage its challenge.

The Project

Respondent Warren-Washington Association for Mental Health, Inc. (“WWAMH”), a not-for-profit corporation formed to improve the quality of life for those affected by mental illness and to promote the importance of mental health in the community, planned to construct the Project within the light industrial district of the City of Glens Falls (“Glens Falls”). The subject site is owned by respondent AMH Resources Corp. (“AMH”), which purchased the site in 2018 for WWAMH to utilize for the Project. WWAMH and AMH Resources share many of the same officers, directors and key personnel, and are represented by the same counsel.

In May 2019 WWAMH filed an application with the Glens Falls Planning Board (“Planning Board”) to construct the Project. On September 3, 2019, the Planning Board resolved to approve the Project. On October 2, 2019, the petitioner, a neighboring business owner (“Petitioner”), commenced this Article 78 proceeding to vacate the Planning Board’s approval of the Project. The Petitioner, however, failed to name AMH – the owner of the subject site.

The Challenge and Petitioner’s Amendment

WWAMH and other respondents answered and asserted several objections in point of law, including that the Court must dismiss the petition because Petitioner failed to name AMH as a necessary party (2020 NY Slip Op 50677[U] [Sup Ct Warren County, Jun. 8, 2020]). In response, Petitioner moved to amend its petition to include AMH as a respondent, and the respondents opposed arguing that the statute of limitations had lapsed so Petitioner could not amend. The Court granted Petitioner’s motion to amend the petition pursuant to CPLR 1001(b) – finding that the expiration of the statute of limitations does not deprive the Court of jurisdiction over a necessary party, and so the Court must order AMH summoned. Significantly, the Court also noted that the statute of limitations constituted a defense which AMH, once summoned, would be free to assert in its answer.

Objection in Point of Law to Dismiss for Nonjoinder, and Relation Back

Upon being joined, AMH asserted the statute of limitations defense and argued the petition must be dismissed because the statute of limitations expired before filing and service of the amended petition. Petitioner did not dispute the expiration of the limitations period, but sought to apply the relation back doctrine. The doctrine permits a petitioner to amend a petition to add a respondent beyond the limitations period if he or she can demonstrate: (i) the claims arose from the same occurrence; (ii) the added respondent is united-in-interest with a previously named respondent; and (iii) the added respondent knew or should have known that, but for a petitioner’s mistake as to the added respondent’s identity, the petition would have been brought against him or her.

The Court held that Petitioner satisfied the first two elements, but failed to satisfy the third: “There is no question that the claims arose out of the same occurrence, nor that [AMH] is united in interest with WWAMH. As such, petitioner has succeeded in demonstrating the first and second prongs.


[However,] [P]etitioner has failed to demonstrate that diligent efforts were made to ascertain [AMH] identity as owner of the property prior to expiration of the statute of limitations. Petitioner therefore has not satisfied third prong of the inquiry based upon its alleged mistake of identity in believing that WWAMH owned the property.”

Petitioner’s Failure to Satisfy the Relation Back Doctrine

Petitioner claimed that its failure to name AMH was due to an inadvertent omission because the site plan application named WWAMH as the owner of the Project site, and that due to WWAMH’s and AMH’s interconnectedness, AMH knew or should have known that – but for the inadvertent omission – AMH would have been named as a respondent. The Court agreed that AMH knew or should have known about its inclusion in the proceeding, but denied Petitioner the benefit of the relation back doctrine because its failure to include AMH was not inadvertent.

With respect to Petitioner’s purported omission, the Court noted: “Inasmuch as petitioner fails to offer any explanation for its inadvertent omission, the Court is left to surmise — based upon the content of its argument — that it believed WWAMH owned the property. This constitutes a mistake of identity, which is entitled to the benefit of the doctrine — provided the petitioner can demonstrate that diligent efforts were made to ascertain the unknown party’s identity prior to expiration of the statute of limitations.” The Court held the Petitioner failed to show it made diligent efforts to ascertain AMH’s identify.

First, although WWAMH’s application to the Planning Board left the “owner” space blank, indicating that the applicant is the owner, the application included a copy of the deed for the Project site. The deed clearly indicated AMH is the owner. Second, the application cover letter stated that the Project would be owned by AMH, and operated by WWAMH. Third, the pertinent meeting minutes show that discussions of the application before the Planning Board apprised all attendees of AMH’s existence and interest in the Project (even though WWAMH’s engineer erroneously described AMH as the applicant, and not the owner). Petitioner’s principal member and its counsel attended and participated in the meeting, offering remarks in opposition to the Project.

The Court held that “[u]nder the circumstances . . . [P]etitioner has failed to demonstrate that diligent efforts were made to ascertain [AMH’s] identity as owner of the property prior to expiration of the statute of limitations. Petitioner therefore has not satisfied third prong of the inquiry based upon its alleged mistake of identity in believing that WWAMH owned the property.” The Court also held that “[t]o the extent that [P]etitioner was perhaps aware that [AMH] owned the property and simply failed to name it as a respondent in the original petition — which is the more likely scenario given the record before the Court — this would constitute a mistake of law, which also fails to satisfy the third prong of the inquiry.”

Dismissal for Nonjoinder

Ultimately, the Court declined to permit Petitioner to rely upon the relation back doctrine, and held AMH was entitled to dismissal of the petition as against it as time-barred. Furthermore, because AMH was no longer a party, the entire proceeding must be dismissed for nonjoinder (i.e. failure to name a necessary party). To avoid this procedural pitfall and reach the merits of an Article 78 challenge, a petitioner must be sure to identify and name all necessary parties when commencing his or her proceeding.

As the popularity of short-term rentals continues to grow and many local governments are adopting restrictions to keep their use in check, the authors of the Long Island Land Use and Zoning blog are closely monitoring how these restrictions are faring in the courts.  As you will see from the recent case entitled Churchill v. Town of Hamburg, 2020 N.Y. Slip Op. 05356 (4th Dep’t 2020), short-term rental restrictions may be ineffective if they are not properly placed within a municipality’s zoning ordinance.

Petitioners, Michael Churchill and Diana Stirling, sought to operate their residence in the Town of Hamburg, New York, as an Airbnb rental.  In 2017, they made application to the Planning Board requesting a special use permit to allow their residence to be used as a “tourist home.” The Petitioners claimed that “tourist homes” are a permitted principal use in the R-1 District with a special use permit from the Planning Board because Town Code § 280-31 states that all uses (except for golf clubs and hospitals) that are permitted in the R-E District are permitted in the R-1 District.  They also pointed out that the R-1 District regulations do not exclude “tourist homes.”

With respect to allowable uses in the R-E District, Town Code § 280-24 expressly provides:

Permitted uses and structures.

Uses and structures permitted in the R-E District are as follows:

A.  Principal uses and structures:

*  *  *

(6)   The following uses by special use permit authorized by the Planning Board (see Article XLVI):

*  *  *

(b)   Bed-and-breakfast establishments and tourist homes.

The Town’s Code Enforcement Official (“CEO”) concluded that a “tourist home” is not a permitted principal use in an R-1 District and denied the application.  Under the CEO’s interpretation of the Town Code provisions, the Petitioners would first have to obtain a use variance before applying for a special use permit from the Planning Board in order to operate their residence as an Airbnb rental.

The Petitioners requested an interpretation of the relevant Town Code sections and a review of the CEO’s determination from the Zoning Board of Appeals (“ZBA”).  Following a public hearing, the ZBA affirmed the CEO’s interpretation and determination.  The Petitioners then commenced an Article 78 proceeding seeking to annul the ZBA’s determination.  The Erie County Supreme Court denied the petition and an appealed ensued.

The Appellate Division, Fourth Department, agreed with the Petitioners that the ZBA’s interpretation of the Town Code lacked a rational basis and that the Supreme Court erred in sustaining the ZBA’s determination.

At the outset, the Court concluded that the Supreme Court failed to apply the clear language of the Town Code’s relevant provisions.  In the court’s own words, “a plain reading of sections 280-24 and 280-31 . . . unambiguously demonstrates that special uses are permitted principal uses, subject to authorization by the Planning Board.”

Contrary to the ZBA’s determination and the interpretation advocated by Town, the Appellate Division concluded that the Town Code establishes that special uses are permitted uses in specific districts.  However, in such cases, the burden is on an applicant for a special use permit to show that the proposed use is allowable within that district by establishing that the use has the requisite individual characteristics.

While it is obvious from its position in the litigation that the Town Board clearly did not intend “tourist homes” to be permitted uses, the Court was constrained to apply the plain language of the relevant code sections.  However, in pointing out that “if the Town Board had intended for special uses to be separate from principal uses, it would have separated them into their own category as it did with accessory uses,” the Court gratuitously provided the Town with a roadmap for amending its ordinance, if it wished to do so.

In Incorporated Village of Lindenhurst v. One World Recycling, LLC, et al., the Second Department reversed the lower court’s denial of permanent injunctive relief, in large part based on the existence of prior agreements between the parties.  The appellant, Incorporated Village of Lindenhurst (the “Village”), sought to prohibit One World Recycling, LLC (“One World”) from exceeding waste processing limits previously agreed to between the Village and One World’s predecessor in interest.

In 2008, the New York State Department of Environmental Conservation (the “DEC”), authorized One World’s predecessor to process up to 370 tons of waste per day, for no more than a combined weekly average of 2,200 tons.  After Hurricane Sandy hit the area in late-October of 2012, the DEC granted One World’s predecessor a temporary emergency authorization to increase its daily waste processing limits to 1,100 tons.  Prior to the expiration of that authorization, One World acquired the facility and applied to the DEC to permanently keep the limits at 1,100 tons per day.

During the pendency of that application, the Village brought an action against One World for, inter alia, breach of contract and injunctive relief.  In particular, the Village alleged that One World’s application to permanently increase its waste processing limits to 1,100 tons per day violated terms of prior agreements between the Village and One World’s predecessor.  Accordingly, the Village sought to preliminarily enjoin One World from processing more than 500 tons of waste per day, and to permanently enjoin One World from exceeding the limits set forth in the 2008 permit.

However, before the Court ruled on the preliminary injunction, the DEC issued a renewal permit allowing One World to process an annual average of 500 tons of waste per day, but to never exceed 600 tons in any single day.  As a result of this renewal permit, the Court denied the Village’s requests for preliminary and permanent injunctive relief.

Upon appeal, the Second Department effectively reversed.  Although the renewal permit changed the status quo, eliminating the prospect of any preliminary injunctive relief, it did not preclude the Court from considering the merits of the Village’s action.  The Second Department held that if the Village could ultimately prove its various claims, such as One World’s breach of a prior agreement due to the increased processing limits, it may then be entitled to its requested permanent injunctive relief, even despite the DEC renewal permit allowing such increase.

Takeaway:  Foresight is incredibly important for any individual or entity entering into a contract.  What one binds itself to now may well limit or even prohibit it from taking otherwise permitted action in the future.  This is true for any legal agreement, and a contract with a municipality is no exception.

The controversy in Matter of McGraw v Town Board of Town of Villenova (4th Dept Docket No CA 19-01362, Aug. 20, 2020) arose from the environmental review conducted on a proposed wind farm in upstate New York. The developer of the project sought a local code amendment and special permit from the Respondent Town Board for 29 wind turbines up to 492 feet in height. As part of the mandatory environmental review process pursuant to SEQRA, the developer prepared a draft environmental impact statement, and later, a supplemental draft impact statement, both of which the Town Board accepted. The Town Board accepted a final environmental impact statement for the project in November 2016.

More than a year after it received its approvals, the developer returned to the Town Board with an application to increase the height of the wind turbines another 100 feet for a maximum height of 599 feet. The developer submitted a full environmental assessment form (FEAF) as part of its application.

Based on the information contained in the FEAF, the Town Board declined to order a second supplemental environmental impact statement; adopted a negative declaration of environmental significance, and approved the developer’s amended application. The Petitioners sued alleging that the Town Board failed to comply with SEQRA by not taking the requisite “hard look” at the environmental issues associated with increasing the height of the turbines, particularly with respect to how the project might impact the endangered bald eagle. The lower court agreed.

The Fourth Judicial Department on appeal reversed the lower court’s decision finding that the Town Board had properly exercised its discretion when it declined to conduct further environmental review. The Court wrote:

During the SEQRA process, a SEIS may be required to address “specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS,” arising from, inter alia, changes in the project (6 NYCRR 617.9 [a] [7] [i]). A decision to require a SEIS “must be based upon . . . the importance and relevance of the information; and . . . the present state of the information in the EIS” (6 NYCRR 617.9 [a] [7] [ii]). “A lead agency’s determination whether to require a SEIS–or in this case a second SEIS–is discretionary” (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 231 [2007]), and such determination “should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” (id. at 232).

. . . The Town Board’s discretionary determination was not arbitrary, capricious, or unsupported by the evidence. The prior submissions concerning the impact of the project on bald eagles, combined with the updated materials submitted with the latest project modification, were sufficient to establish that the proposed changes would not adversely impact bald eagles. The materials established that collisions between raptors and wind turbines are rare, and that even the higher, 599-foot turbines lie below the normal flight altitude of bald eagles.

(Memorandum and Order, p. 2). Thus, the Appellate Court rejected the Petitioners’ contentions in favor of the reasoned discretion of the reviewing agency and dismissed the petition in its entirety.

A copy of the Court’s decision can be accessed by clicking the following link: Matter of McGraw.

As a “home rule” state, New York’s zoning and other land use decisions are typically made at the village, town, or city level.  However, Section 239-m of the General Municipal Law (GML) requires a referral to, and a subsequent recommendation by, the local county planning commission for certain local land use actions that might affect the interests of other jurisdictions. The failure of a local board to make a required referral can have severe consequences, including having its decision deemed void and unenforceable.

General Municipal Law § 239-m

GML § 239-m(2) provides that any village, town, or city that is located in a county that has a county planning agency or, in the absence of a county planning agency, that is located in the jurisdiction of a regional planning council, must refer the following proposed actions to the planning agency or council before taking final action:

  • Adoption or amendment of a comprehensive plan;
  • Adoption or amendment of a zoning ordinance or local law;
  • Issuance of special use permits;
  • Approval of site plans;
  • Granting of use or area variances; and
  • Other authorizations that a referring body may issue under the provisions of any zoning ordinance or local law.

However, referrals of these actions are required only if they apply to real property within 500 feet of any of the following:

  • The boundary of any village, town, or city;
  • The boundary of any existing or proposed county or state park or other recreation area;
  • The right-of-way of any existing or proposed county or state parkway, thruway, expressway, road, or highway;
  • The existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines;
  • The existing or proposed boundary of any county or state owned land on which a public building or institution is situated; or
  • The boundary of a farm operation located in an agricultural district (except with respect to the granting of area variances).

The purpose of a GML § 239-m referral is to ensure that regional or county-wide concerns are taken into consideration in the local planning process.

The county planning agency or regional planning council to which a referral is made has 30 days (subject to being extended by mutual agreement) to report its recommendations to the referring body. This time starts to run only after the planning agency or council has received a full statement of the proposed action.  The planning agency or council’s report must be accompanied by a statement of the reasons for its recommendations. If the planning agency or council fails to issue a report within this period, the referring body may act on the proposed action.

Once the planning agency or council has reviewed the proposed action, it may recommend approval, modification, or disapproval of the proposed action, or it may report that the proposed action has no significant county-wide or inter-community impact and deem it to be a matter for local determination.  If the planning agency or council recommends modification or disapproval of a proposed action, the referring body may not act contrary to the recommendation unless a supermajority of the referring body – that is, a majority plus one of all of its members – votes to do so.

GML § 239-m(3)(c) also authorizes a county planning agency or council to enter into agreements with municipalities to provide that certain proposed actions otherwise subject to referral are matters of local determination, rather than of inter-community or county-wide concern, and are not subject to referral.

Suffolk County

Zoning and planning actions in Suffolk County must also comply with the referral requirements of the Suffolk County Administrative Code (SCAC), which requires review and recommendation over a slightly expanded scope of zoning actions within the county as compared to GML § 239-m.

In particular, Section A14-14 of the SCAC requires that towns and villages refer to the Suffolk County Planning Commission (SCPC) any zoning regulation or amendment that would change the district classification of, or regulations applying to, real property lying within one mile of a nuclear power plant or airport or within 500 feet from:

  • The boundary of any village or town;
  • The boundary of any existing or proposed county, state, or federal park or other recreation area;
  • The right-of-way of any existing or proposed county or state parkway, thruway, expressway, road, or highway;
  • The existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines;
  • The existing or proposed boundary of any other county, state, or federally owned land held or to be held for governmental use;
  • The Atlantic Ocean, Long Island Sound, any bay in Suffolk County, or an estuary of any of the foregoing bodies of water; or
  • The boundary of a farm operation located in an agricultural district.

Following the referral of a zoning action to the SCPC, the Commission has 45 days after receipt of a full statement on the proposed action to issue its report.

In order to reduce the administrative burden on local municipalities and to focus on actions with inter-community or county-wide implications, the SCPC, by resolution passed on September 3, 2008, determined that the following actions are matters for local determination that will not be subject to referral pursuant to the GML or the SCAC, provided that an inter-municipal agreement with the referring body is entered into:

  • All area variances associated with single-family residences.
  • Change of one permitted use to another with no changes in parking requirements (i.e. retail to office).
  • Minor additions less than 1,000 square feet with no change to use or occupancy.
  • Site plan applications proposing less than 5,000 square feet of new or renovated floor area or less than 10,000 square feet of land disturbance.

However, if any of the above actions are the subject of a Positive Declaration pursuant to the State Environmental Quality Review Act or involve property abutting state or county parkland, the Atlantic Ocean, Long Island Sound, any bay in Suffolk County or estuary of any of the foregoing bodies of water, they shall be subject to the full SCPC review process.  For a more detailed discussion of the benefits of inter-municipal cooperation under GML § 239-m, see our prior blog post, No More General Municipal Law 239-m County Referrals!


The law is clear that a local government’s failure to refer a proposed zoning or land use planning action to the relevant county commission can lead to its approval of the proposed action being invalidated by the courts. For example, in Matter of LCS Realty Co., Inc., 273 A.D.2d 474 (2d Dep’t 2000), the Appellate Division, Second Department, ruled that the Village of Roslyn’s comprehensive master plan was void and unenforceable because the village failed to comply with GML § 239-m.  More recently, in Matter of Calverton Manor, LLC, 160 A.D.3d 842 (2d Dep’t 2018), the  same court ruled that the Town of Riverhead’s failure to refer a proposed transfer of development rights law constituted a “jurisdictional defect” that rendered the adopted law void and unenforceable.

Accordingly, local officials must adhere to the requirements of GML § 239-m and other county referral laws in order to limit the risk that their zoning or other land use decisions will be invalidated.

Southampton Town GIS


Applicants sought to subdivide two lots located at 550 Hill Street and 554 Hill Street in the Village of Southampton into three residential lots with a 25 foot wide access easement along the southerly side of an adjoining property to provide access to one lot from Captains Neck Lane. The two lots proposed to be subdivided are long and narrow lots comprised of 23,070 square feet and 48,284 square feet respectively, located in a split zoning district (R-40 and R-120). The proposed subdivision required lot area, lot width, lot frontage and setback relief from the Zoning Board of Appeals (hereinafter “ZBA”). 554 Hill Street is improved with a pre-existing, nonconforming, industrial storage and warehouse that is actively used by a moving and storage company. The ZBA granted the relief required to subdivide the two lots into three and neighboring property owners (hereinafter “petitioners”) appealed the determination in an Article 78 Proceeding.

The petitioners argued that the pre-existing, nonconforming storage and warehouse use on the property was more benign than the proposed conforming, residential use. Additionally, they argued that the proposed three-lot subdivision and resultant increase in density would create a nuisance to neighbors and violate the Village Comprehensive Plan to maintain small scale development. Petitioners further argued that the ZBA exercised legislative powers by re-zoning the property under the guise of granting variances. The 550 Hill Street lot is pre-existing, nonconforming with respect to lot area at 43,242 square feet since it is located in the R-120 Zoning District which requires 120,000 square feet per lot. The 552 Hill Street lot is 79,884 square feet located in both the R-40 and R-120 zoning districts. Thus, petitioners asserted the approved subdivision lots deviated so substantially from the minimum lot areas and setbacks required in the R-40 and R-120 zoning districts that it constituted a re-zoning of the lots. Finally, petitioners asserted that the ZBA failed to consider the five factors required by Village Law and requested that the determination be annulled and set aside.

The Supreme Court Suffolk County, in the Matter of Ruttenberg et al. v. Zoning Board of Appeals of the Village of Southampton, 550 Hill Street, LP, and 554 Hill Street LP, dated May 18, 2020, upheld the Zoning Board’s determination. The Court noted that the central issue posed by petitioners was “whether the ZBA, in granting the area variances, effectively re-zoned the two lots and, thereby, impermissibly exercised legislative powers.” The Court disagreed, relying in part on the Zoning Board’s determination that “there are only one or two lots in the neighborhood that conform to the current zoning, and that the majority of the lots within the surrounding R-40 zone are generally smaller than the required 40,000 square feet and have an average lot size of approximately 34,465 square feet.”

The Court referred to the broad discretion afforded to local Zoning Boards and found that, (i) the ZBA considered each of the five statutory factors of the area variance balancing test, (ii) the ZBA’s conclusions were supported by ample evidence and had a rational basis, and (iii) the ZBA’s actions were not arbitrary and capricious. The Court upheld the ZBA determination and denied the Petition.


Last February, in Dreyer v Stachecki, 2020 NY Slip Op 50134(U), the Suffolk County Supreme Court denied an unopposed motion for pre-action discovery. CPLR Section 3102(c) authorizes disclosure – prior to commencement – to aid in bringing an action or proceeding. In this case, the petitioner-movant sought the production of documents and depositions in anticipation of his challenges to certain land use determinations.

Within the Town of Southampton (“Southampton“), the petitioner owns a home adjacent to a 20-acre parcel owned by one of the respondents. In April 2019, Southampton’s Department of Land Management issued the respondent a certificate of occupancy (“CO“) for a pre-existing, non-conforming use for the receipt of natural organic waste (trees, brush, stumps, leaves and other clearing debris). Notably, Southampton Town Code Section 330-167 permits the Zoning Board of Appeals (“ZBA“) to approve a change from one non-conforming use to another if certain criteria are met.

The petitioner alleged the owner of the 20-acre parcel planned to convert use of the premises from non-conforming waste receipt to a 120-unit condominium development, and that – in furtherance thereof – the respondents signed false affidavits to procure the CO. He anticipated bringing an action and/or proceeding seeking, among other things, to prevent the development. The petitioner contended that pre-action discovery was necessary to obtain information to demonstrate the falsity of the affidavits. He also argued it was necessary to obtain the information before the Southampton ZBA considered the change of use, and before the Southampton ZBA and Planning Board considered the application for construction of the development.

The Court denied the petitioner’s motion. “Pre-action disclosure can be used to enable the plaintiff to frame a complaint, to preserve evidence for a forthcoming lawsuit, and to ascertain the identities of prospective defendants. [It] may not be used to ascertain whether a prospective plaintiff has a cause of action worth pursuing.” Further, the Court should only grant such relief where the movant demonstrates he or she has “a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.” Put another way, the movant “must allege facts fairly indicating that he [or she] has some cause of action.”

Here, the petitioner failed to demonstrate he had a meritorious claim. He did not submit an affidavit of someone with personal, first-hand knowledge of facts establishing a cause of action; rather, he relied solely upon a verified petition and affirmation of counsel consisting of unsubstantiated conclusory allegations regarding his theory of the case. In denying the petitioner’s motion, the Court emphasized that “[p]re-action discovery is not permissible as a fishing expedition to ascertain whether a cause of action exists.”

This week, a not-for-profit hunters advocacy group, Hunters For Deer, Inc. (HFD), won a decisive victory in the Second Department based on New York’s preemption doctrine.  In Hunters for Deer, Inc. v Town of Smithtown, ____AD3d  (August 18, 2020) the Appellate Division settled a conflict preemption argument between State and local government regulations upholding the State’s authority to regulate the discharge of bows and arrows under the Environmental Conservation Law (ECL) despite a more restrictive local municipal regulation by the Town of Smithtown.

The New York Constitution “confers broad police power upon local government relating to the welfare of its citizens” (New York State Club Assn. v City of New York, 69 NY2d 211, 217, affd 487 US 1; see NY Const, art IX, § 2[c]).  New York’s Municipal Home Rule allows local governments to adopt local laws that tend to create a patchwork of rules and regulations across the State that can balkanize effective state wide regulation.   However, “local governments may not exercise their police power by adopting a law inconsistent with . . . any general law of the State” (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 96).

As succinctly stated by the Court of Appeals:

“[t]he preemption doctrine represents a fundamental limitation on home rule powers. While localities have been invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies ‘the untrammeled primacy of the Legislature to act * * * with respect to matters of State concern.’ Preemption applies both in cases of express conflict between local and State law and in cases where the State has evidenced its intent to occupy the field” (citations omitted).

See, Matter of Cohen v. Board of Appeals of the Village of Saddle Rock,  NY2d 395 [2003].

In Hunters for Deer, Inc. v. Town of Smithtown, the Court was faced with the novel question of whether a Town of Smithtown ordinance prohibiting the discharge of “firearms” on private property, within 500 feet of a dwelling (See, Town Code § 160-4 and §160-5) could supersede a less restrictive State law.  The Town’s law is stricter than New York’s ECL §11-0931(4)(a) (2), which the State amended in 2014 to reduce bow and arrow setbacks from 500 to 150 feet for bows.  The ECL amendment was part of a state wide effort to reduce ballooning deer populations through increased bowhunting opportunities made possible by less restrictive setbacks.

At the center of the litigation was the State’s definition of “firearm.”  The Town ordinance defines “firearm” to include a “weapon which acts by the force of gunpowder or from which a shot is discharged by the force of an explosion, as well as an air rifle, an air gun, a BB gun, a slingshot and a bow and arrow.” (See, Town Code §160-2) (emphasis added).  The State’s ECL excludes bows and defines “firearm” as “any rifle, pistol, shotgun or muzzle loading firearm which by force of gunpowder, or an airgun . . . , that expels a missile or projectile capable of killing, wounding or otherwise inflicting physical damage upon fish, wildlife or other animals” (6 NYCRR 180.3[a]).

The Court found that the State’s definition of “firearm” does not encompass a bow and arrow, and held that to the extent the Town ordinance seeks to regulate the discharge setback of a bow and arrow within the Town, it is invalid as preempted by the State’s definition.  Thus, the Town’s ordinance, which seeks to prohibit the discharge of a bow and arrow is preempted in circumstances where permitted under State law.

While it may not be the “shot heard around the world,”  the Court’s rejection of the Town’s home rule authority is another arrow in the quiver of the State’s wildlife management, especially given the statewide importance of coordinated wildlife management.

View of Hudson River from Upper Nyack, New YorkPetitioner, Claude Simon (“Petitioner”), owns approximately 2.25 acres of property in the Village of Upper Nyack (the “Village”), which he sought to subdivide into two separate lots.  The first lot would contain the existing dwelling and other existing improvements.  The vacant second lot would be improved with a single-family dwelling.  However, the Village advised Petitioner that he would need to obtain variances for the subdivision.  Accordingly, Petitioner “filed an application for what he believed to be the proper variances.”

During the pendency of Petitioner’s application, the Chairman of the Village Zoning Board of Appeals (the “ZBA”), Thomas Englert (“Englert”), appeared at a Village Planning Board (the “Planning Board”) hearing “in his capacity as a neighbor of Petitioner.”  Englert, who ultimately recused himself from voting on Petitioner’s application, complained that Petitioner’s “proposed subdivision would adversely impact his property.”  The Planning Board, as lead agency under the State Environmental Quality Review Act (“SEQRA”), required Petitioner to address certain issues of concern to neighbors and the ZBA.  In particular, Petitioner was asked whether the proposed subdivision would adversely impact the views from neighboring properties, specifically, neighbors’ views of the Hudson River.  Ultimately, the Planning Board found that the proposed subdivision would not have significant adverse environmental or aesthetic impacts on the surrounding areas.  Accordingly, the Planning Board issued a negative declaration under SEQRA.

Despite the supporting evidence presented by Petitioner, and the Planning Board’s environmental review and subsequent findings, the ZBA denied Petitioner’s application.  In its determination, the ZBA found that Petitioner’s requested variances “were substantial, and that granting them would produce an undesirable change in the character in the neighborhood.”  However, the ZBA failed to “explain its departure from the Planning Board’s determinations.”

Petitioner brought an Article 78 proceeding seeking to annul the ZBA’s determination denying the variances.  Judicial review of an administrative determination is limited to whether there is a rational basis to support it.  A court undertaking this review shall set aside the determination only if it is arbitrary, capricious, or an abuse of discretion.  The Supreme Court held that the ZBA’s determination contained only conclusory findings, and was therefore “arbitrary, capricious, and not supported by an objective factual basis in the record.”  The ZBA essentially ignored the Planning Board’s findings that no adverse environmental or aesthetic impact to the neighborhood would result from the variances.  Instead, the ZBA’s denial seemed to be a result of “general community opposition” from two neighboring property owners who claimed, without support, that the proposed subdivision would result in a reduction of their property values.  Even if true, such grounds are insufficient to establish a rational basis to deny Petitioner’s application.  Accordingly, the Supreme Court granted the petition to set aside the ZBA’s determination and ordered the ZBA to grant the variances.  The ZBA appealed the Supreme Court’s decision, but the Second Department ultimately affirmed on the same grounds.

Takeaway:  Administrative agencies, such as local zoning boards, enjoy significant discretion in deciding land use applications affecting the municipalities they serve.  However, that discretion is not unlimited.  All administrative determinations must be supported by a rational basis.  When no rational basis exists, the determination is subject to reversal upon judicial review.